JOEDY PATRICK, MARTIN F. MUSSER, and UNPUBLISHED
JACK STENBERG, January 14, 2000
Plaintiffs-Appellants,
v No. 218506
Ingham Circuit Court
ALAIEDON TOWNSHIP, ALAIEDON LC No. 98-089294-CZ
TOWNSHIP BOARD, MARVIN LOTT,
BRUCE OESTERLE, ROBERT CALTRIDER,
RICHARD KRANZ, and STUART THORBURN,
Defendants-Appellees,
and
JACKSON NATIONAL LIFE INSURANCE
COMPANY and CITY OF LANSING,
Intervening Defendants-Appellees.
__________________________________
Before: Holbrook, Jr., P.J., and Smolenski and Collins, JJ.
PER CURIAM.
Plaintiffs appeal by right from an order granting summary disposition
in favor of defendants pursuant to MCR 2.116(C)(8) and (10), based on the
determination that (1) the reenactment of a disputed 1984 PA 425 agreement
(the 425 agreement)1 precluded its invalidation for alleged violations of
the Open Meetings Act (OMA), MCL 15.261 et seq.; MSA 4.1800(11) et seq.,
and (2) plaintiffs failed to establish proper grounds for injunctive
relief. We affirm.
Plaintiffs are property owners within Alaiedon Township who commenced
litigation claiming that Alaiedon Township, its board, and board members
(collectively, the township), violated the OMA in negotiating and entering
into the 425 agreement with the city of Lansing (the city). The 425
agreement involved property owned by Jackson National Life Insurance
Company (Jackson National) and located within the township. Plaintiffs
contend that the trial court erred in granting summary disposition in favor
of defendants because plaintiffs pleaded sufficient factual allegations
creating genuine issues of material fact, reenactment of the 425 agreement
was
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perfunctory and in bad faith, and discovery had not yet been completed. We
reject each of these arguments.
MCL 15.262; MSA 4.1800(12), defines certain terms with regard to
application of the OMA and states, in pertinent part:
(a) "Public body" means any state or local legislative or
governing body, including a board, commission, committee,
subcommittee, authority, or council, which is empowered by state
constitution, statute, charter, ordinance, resolution, or rule to
exercise governmental or proprietary authority or perform a
governmental or proprietary function. . . .
(b) "Meeting" means the convening of a public body at which a
quorum is present for the purpose of deliberating toward or rendering
a decision on a public policy.
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(d) "Decision" means a determination, action, vote or disposition
upon a motion, proposal, recommendation, resolution, order, ordinance,
bill, or measure on which a vote by members of a public body is
required and by which a public body effectuates or formulates public
policy.
MCL 15.263; MSA 4.1800(13), provides, in pertinent part:
(1) All meetings of a public body shall be open to the public and
shall be held in a place available to the general public. All persons
shall be permitted to attend any meeting except as otherwise provided
in this act . . . The exercise of this right shall not be dependent
upon the prior approval of the public body. However, a public body may
establish reasonable rules and regulations in order to minimize the
possibility of disrupting the meeting.
(2) All decisions of a public body shall be made at a meeting
open to the public.
(3) All deliberations of a public body constituting a quorum of
its members shall take place at a meeting open to the public.2
Decisions of a public body shall be presumed to have been adopted in
compliance with the requirements of the OMA. MCL 15.270(1); MSA
4.1800(20)(1). There is no dispute among the parties that the township is
anything other than a "public body" as defined by the OMA and is therefore
subject to the act.
Plaintiffs alleged that the township violated the OMA by engaging in
secret deliberations and decision making regarding the approval of the 425
agreement. However, even if the township
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violated the OMA, it cured any violation when it reenacted its prior
approval of the 425 agreement pursuant to MCL 15.270(5); MSA 4.1800(20)(5),
which provides in pertinent part:
In any case where an action has been initiated to invalidate a
decision of a public body on the ground that it was not taken in
conformity with the requirements of [the OMA], the public body may,
without being deemed to make any admission contrary to its interest,
reenact the disputed decision in conformity with this act. A decision
reenacted in this manner shall be effective from the date of
reenactment and shall not be declared invalid by reason of a
deficiency in the procedure used for its initial enactment.
The only requirement necessary to accomplish this curative effect
under MCL 15.270(5); MSA 4.1800(20)(5) is for the public body to reenact
the disputed decision in accordance with the OMA; notably, there are no
provisions within the act mandating that the reenactment proceeding be
"nonperfunctory" or conducted in "good faith." Our review of the record
indicates that on December 28, 1998, at a public hearing held in accordance
with the OMA, the township, after adequately reconsidering the issues
surrounding the 425 agreement and permitting public comment, voted to
approve the agreement. Thus, any violations committed by the township up to
that point regarding the 425 agreement were rendered a nullity and the
agreement could no longer be declared invalid. MCL 15.270(5); MSA
4.1800(20)(5).
We review a trial court's decision whether to invalidate a disputed
decision made in alleged violation of the OMA for abuse of discretion.
Esperance v Chesterfield Twp, 89 Mich App 456, 464; 280 NW2d 559 (1979).
Because the township properly reenacted its decision to approve the 425
agreement, that decision stood "untainted by procedural deficiency."
Manning v City of East Tawas, 234 Mich App 244, 252; 593 NW2d 649 (1999).
Thus, the trial court did not abuse its discretion in refusing to
invalidate the 425 agreement. Because we conclude that the township
properly reenacted its approval of the 425 agreement pursuant to the
curative provision of the OMA, it is unnecessary to address each and every
OMA violation alleged to have been committed by the township.
Next, plaintiffs argue that even if invalidation of the 425 agreement
was precluded, they were still entitled to injunctive relief and their
costs and attorney fees incurred in bringing this action. We disagree. If a
public body is not complying with the requirements of the OMA, the act
authorizes a person to compel compliance or to enjoin further
noncompliance. MCL 15.271(1); MSA 4.1800(21)(1). The OMA also allows a
person who succeeds in obtaining relief in a civil action under the OMA to
recover court costs and actual attorney fees. MCL 15.271(4); MSA
4.1800(21)(4).
A public body's violation of the OMA does not automatically mean that
an injunction must issue to restrain the public body from utilizing the
violative procedure in the future. Esperance, supra at 464. Granting
injunctive relief is within the sound discretion of the trial court.
Wilkins v Gagliardi, 219 Mich App 260, 276; 556 NW2d 171 (1996). Injunctive
relief is an extraordinary remedy that issues only when justice requires,
there is no adequate remedy at law, and there exists a real and imminent
danger of irreparable injury. Kernen v Homestead Development Co, 232 Mich
App 503, 509; 591 NW2d 369 (1998); Wilkins, supra at 276. Where
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the record fails to indicate that the public body acted in bad faith, there
is no real and imminent danger or irreparable injury requiring issuance of
an injunction. Esperance, supra at 464-465. Thus, where the alleged OMA
violations have been addressed and no similar incidents have occurred, it
can be concluded that no real and imminent danger exists. Wilkins, supra at
276. "In those circumstances, it is appropriate to refrain from imposing a
permanent injunction." Id. See also, Schmiedicke v Clare School Bd, 228
Mich App 259, 267; 577 NW2d 706 (1998), in which this Court affirmed the
trial court's denial of an injunction to ensure the defendant's future
compliance with the OMA, when "there was no reason to believe" the
defendants would deliberately fall to comply with the OMA.
Here, without determining whether the township violated the OMA, we
conclude that it properly reenacted the 425 agreement pursuant to the
statute. Furthermore, the record fails to show that the township was
continuing to act contrary to the OMA. Thus, the trial court did not abuse
its discretion in refusing plaintiffs' requested relief.
While the OMA contemplates and provides that a party may be entitled
to court costs and actual attorney fees under certain circumstances, MCL
15.271(4); MSA 4.1800(21)(4), even if there is an admitted violation of the
OMA, plaintiffs must obtain "relief in the action" to be awarded these
sanctions. Felice v Cheboygan Zoning Comm, 103 Mich App 742, 745-746; 304
NW2d 1 (1981). In the present case, plaintiffs failed to obtain any relief
in their action. Thus, they were not entitled to the award of costs and
attorney fees.
Next, plaintiffs contend that the trial court prematurely granted
defendants' motion for summary disposition because discovery had not yet
been completed. We disagree. As a general rule, summary disposition is
premature if granted before discovery on a disputed issue is complete.
State Treasurer v Sheko, 218 Mich App 185, 190; 553 NW2d 654 (1996).
Nevertheless, summary disposition may be appropriate if further discovery
does not stand a reasonable chance of uncovering factual support for the
opposing party's position. Hasselbach v TG Canton, Inc, 209 Mich App 475,
482; 531 NW2d 715 (1994). Here, we conclude that any further discovery
would have been futile. The township cured any alleged violations of the
OMA by properly reenacting the 425 agreement thus precluding invalidation.
Because plaintffs were seeking additional discovery of events that occurred
prior to the township's reenactment, any additional evidence discovered by
plaintiffs would not have resulted in a different outcome. Moreover, our
review of the record fails to show that the township was continuing to
engage in conduct violative of the OMA after it reenacted the 425
agreement. Thus, the additional discovery sought by plaintiffs would not
have aided in obtaining injunctive relief
Finally, while plaintiffs contend that the trial court erred in
permitting Jackson National and the city to intervene in this case, they
failed to provide this Court with any authority supporting this contention.
This Court will not search for authority to sustain a party's position.
Schellenberg v Rochester Michigan Lodge No 2225, of Benev & Protective
Order of Elks of
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USA, 228 Mich App 20, 49; 577 NW2d 163 (1998). "Where a party fails to cite
any supporting legal authority for its position, the issue is effectively
abandoned." Id.
Affirmed.
/s/ Donald E. Holbrook, Jr.
/s/ Michael R. Smolenski
/s/ Jeffrey G. Collins
1 1984 PA 425 enables two local units of government to conditionally
transfer property by written agreement for the purpose of economic
development projects. See MCL 124.21 et seq.; MSA 5.4087(21) et seq.
2 The OMA provides for certain exceptions to the necessity to conduct
deliberations at a public meeting, none of which are applicable in this
case. See MCL 15.263 (7)-(11); MSA 4.1800(13)(7)-(11); MCL 15.267; MSA
4.1800(17); and MCL 15.268; MSA 4.1800(18).
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